Opinion
D060334 Super. Ct. No. NJ14273
01-19-2012
In re R. H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Petitioner and Respondent, v. J. H., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Michael J. Imhoff, Commissioner. Order affirmed.
J. H. appeals a juvenile court order terminating parental rights to her son, R. H. She contends that the record lacks sufficient evidence to support the juvenile court's order because the San Diego County Health and Human Services Agency (the Agency) did a deficient assessment of R.'s sibling relationship with his half-brother, Trystan P. She also asserts the juvenile court erred in denying her request for a continuance of the contested Welfare and Institutions Code section 366.26 hearing in order to obtain a bonding study between R. and Trystan. (Undesignated statutory references are to the Welfare and Institutions Code.) We reject her contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
J. gave birth to R. in May 2009. R.'s family came to the Agency's attention the following month when it learned that J. had tested positive for methamphetamine while pregnant with R. In May 2010, the Agency took R. into protective custody after he was exposed to incidents of domestic violence. The Agency then filed a petition alleging there was a substantial risk R. would suffer serious physical harm or illness due to his parent's inability to adequately protect him. It later filed an amended petition alleging there was substantial risk R. would suffer serious physical harm or illness due to J.'s substance abuse.
In August 2010, the juvenile court sustained the petition, declared R. a dependent, placed him in out-of-home care at the home of a relative, ordered supervised visits for both parents and directed that reunification services be provided. At the six-month review hearing in March 2011, the juvenile court terminated J.'s services, set a section 366.26 hearing, and ordered the Agency to prepare an assessment report. It also found that J. had failed to make substantive progress with her case plan and ordered R. placed with Carol H., a paternal aunt, out of state.
At the start of the contested section 366.26 hearing in August 2011, J. requested a continuance for the court to order a sibling bonding study between R. and his seven-year- old half-brother, Trystan, to assess whether the beneficial sibling relationship exception applied. The juvenile court denied the request and proceeded with the contested hearing. After hearing argument from counsel and considering the evidence, the juvenile court found by clear and convincing evidence that R. was likely to be adopted. The court terminated parental rights and referred R. to the Agency for adoptive placement. J. timely appealed.
DISCUSSION
I. Sufficiency of the Evidence
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is adoptable, it becomes the parent's burden to show that termination of parental rights would be detrimental to the child because of a specified statutory exception to termination of parental rights and adoption. (Id. at p. 574.) The sibling relationship exception to terminating parental rights applies when the juvenile court finds termination of parental rights would substantially interfere with the child's sibling relationship and the severance of the relationship would be so detrimental to the child as to outweigh the benefits of adoption. (§ 366.26, subd. (c)(1)(B)(v); In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-952 (L. Y. L.).) The purpose of this exception is to preserve long-standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.)
Factors to be considered in determining whether this exception applies include: (1) whether the siblings were raised in the same home; (2) whether they shared significant common experiences or have existing close and strong bonds; and (3) whether ongoing contact is in the child's best interests, including his or her long-term emotional interests, as compared to the benefit of adoption. (§ 366.26, subd. (c)(1)(B)(v).) "[T]he application of this exception will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
We review a juvenile court order declining to apply an exception to termination of parental rights and adoption for substantial evidence. (L. Y. L., supra, 101 Cal.App.4th at p. 947.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (Ibid.) Rather, we draw all reasonable inferences in support of the juvenile court's findings, consider the record most favorably to the juvenile court's order, and will affirm the order if it is supported by substantial evidence even if other evidence supports a contrary conclusion. (Ibid.)
J. asserts the juvenile court order terminating parental rights was not supported by substantial evidence because the Agency conducted an inadequate review regarding R.'s contact and relationship with Trystan. Based on this alleged void in the evidence, J. contends the trial court could not have found by clear and convincing evidence that adoption was the legally appropriate permanent plan. We disagree.
The juvenile court considered the testimony of social worker Kathleen Forbes and an assessment report prepared by her. This evidence revealed that R. lived with J. and Trystan for about a year after his birth until his removal in May 2010. R. has lived out of state since April 2011. After his removal from J.'s home, R. and Trystan maintained regular contact and a court ordered plan allowed R. to have weekly contact with Trystan. Although Forbes had not spoken to Trystan's father, she believed he was supportive of the boys remaining in contact with one another.
Based on her training and experience, Forbes testified that a two-year-old child could not understand the concept of not seeing someone anymore, but could probably understand the concept of losing something. Although Forbes never asked R. how he would feel if his relationship with Trystan ended, she believed R. could feel a loss, but opined that it would not be detrimental to him and that the loss of the relationship did not rise above the benefits R. would receive through adoption.
This evidence amply supported the juvenile court's conclusion that the sibling relationship exception to terminating parental rights did not apply. Although R. and Trystan had lived together for about a year, this occurred when R. was not yet one year old. Given R.'s young age, it is extremely unlikely that he will be able to recall any shared common experiences. Moreover, while a bonding study had not been done, Forbes assessed the sibling bond between the boys based on the case history, accounts from people that had supervised visits between R. and Trystan, and her general knowledge regarding this age group. She ultimately concluded that the loss of R.'s relationship with Trystan did not rise above the benefits he would receive through adoption.
J. cites In re Kristin W. (1990) 222 Cal.App.3d 234, arguing that a social worker's opinions or bare conclusions will not support a finding of adoptability. In that case, the social worker's opinion was not supported by any evidence in the record. (Id. at p. 253.)
Here, unlike In re Kristin W., Forbes's testimony was not unsubstantiated and the juvenile court could properly accept her ultimate conclusions. (Evid. Code, § 411 ["Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact."].)
In view of R.'s circumstances and his age, the record supports the juvenile court's conclusion that R.'s long-term emotional interest would be better promoted by adoption then by maintaining a sibling relationship with Trystan. (§ 366.26, subd. (c)(1)(B)(v).)
II. Continuance Denial
Continuances in a dependency matter shall be granted only upon a showing of good cause by the requesting party and the court may not grant a continuance that is contrary to the child's interests. (§ 352, subd. (a); Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) We review a denial of a continuance for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
J. asserts that the juvenile court abused its discretion in refusing to continue the section 366.26 hearing to allow a sibling bonding study to be conducted for R. and Trystan. She also claims the error violated her right to due process as it denied her a meaningful hearing. We conclude there was no abuse of discretion or due process violation.
Family preservation ceases to be of overriding concern once a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1340-1341.) "While it is not beyond the juvenile court's discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.) Here, J. could have requested a sibling bonding study at an earlier time, but waited until the start of the section 366.26 hearing. At that time, R.'s parents had not visited him for about a year and he had experienced four different placements in his young life before moving to his current placement in April 2011. R.'s current caregiver "love[d] him unconditionally," wanted to adopt him and had been approved to adopt. The juvenile court acted well within its discretion when it denied the requested continuance as untimely and not in R.'s best interests.
A fundamental requirement of due process "is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) J. was presumably aware of any alleged deficiencies in the assessment report before the hearing and had adequate time to subpoena other witnesses familiar with R.'s relationship with Trystan to testify regarding the bond between the boys. Moreover, J. had the opportunity to cross-examine Forbes at the hearing. Accordingly, we reject J.'s suggestion that the denial of a continuance violated her right to due process.
DISPOSITION
The order is affirmed.
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MCINTYRE, J.
WE CONCUR:
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HUFFMAN, Acting P. J.
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AARON, J.